1. INTERPRETATION

1.1 In these Conditions unless the context otherwise permits:-

"Authorised Representative" means a person whose job title is that of Director or Managing Director or a person who holds the office of director.

"Consumer" shall mean any natural person who in the contract with the Customer is acting for purposes that are not related to his trade, business or profession.

"Customer" means the person, firm, company, entity or organisation with whom ITHSC contracts for the sale of Products and/or supply of Services.

"the Conditions/ these Conditions" means the standard terms and conditions of sale set out in this document or such replacement standard terms and conditions notified to Customer as are in force at the date of the Contract and which at that date appear on ITHSC`s web site at www.ciscohardwaremaintenance.com and/or which are available on request at ITHSC`s principal trading address at 20 Carlton Road, Oxford, OX2 7SA, England.

"the Contract" means any contract for the purchase and sale or other supply of Products and/or the supply of Services by ITHSC to a Customer.

"Electronic Means" means any electronic means including without limit on the Web, by EDI or XML, or similar..

"ITHSC" means I.T. Help and Support Centre Ltd (registered in England number 5542369) with its registered office at 8 St Mary`s Street, Wallingford, Oxfordshire OX10 0EL, England.

"Products" means any Products (including, for the avoidance of doubt software and installments of the Products or any parts of or for them) sold by ITHSC to a Customer.

"Services" means any services supplied by ITHSC to the Customer.

"Special Order Products" shall mean Products that are classified in ITHSC`s current comprehensive product listing as special order products or have been ordered specifically by Customer or configured to Customer`s specifications.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.3 The Conditions shall apply to sales of all Products including Special Order Products ordered for shipment to or within the UK mainland. ITHSC reserves the right to apply supplemental or other terms for Products to be shipped by ITHSC outside the UK mainland.

2.1 All Contracts between ITHSC and a Customer shall be governed by these Conditions (and, where applicable, any other terms and conditions pursuant to Clause 1.3) to the exclusion of any other terms and conditions not accepted in writing by an Authorised Representative of ITHSC, including without limit any terms on or referred to in any Customer purchase order. In the case of orders placed by Electronic Means which refer to any terms and conditions of the Customer ITHSC`s automatic taking on to its system of such order shall amount to a rejection of the Customer`s terms and conditions and an offer to supply the Products ordered on the basis of these Conditions. No variation to these Conditions shall be binding unless agreed by letter signed by an Authorised Representative of ITHSC. It is the Customer`s responsibility to be aware of the Conditions as current from time to time but ITHSC will use best efforts to notify Customer of any material changes to the Conditions before they become applicable. In addition to any acceptance of these Conditions by signing ITHSC`s account application form, the Customer`s acceptance of these Conditions shall also be made (in respect of the first Contract and all subsequent Contracts) either by (1) Customer providing a purchase order to ITHSC or (2) Customer accepting Products or Services from ITHSC, whichever occurs first.

2.2 No employee or agent of ITHSC other than an Authorised Representative has any authority to make any representation at all concerning Products or Services and an Authorised Representative has no authority to make such representation other than by letter (an "authorised representation") and accordingly Customer agrees that in entering into any Contract it does not rely on any unauthorised representation and Customer agrees it shall have no remedy in respect of any unauthorised representation (unless made fraudulently) .

3. CUSTOMER IDENTIFICATION

3.1 In placing an order including by Electronic Means Customer may utilise one or a combination of account name, account number and other forms of identification including password or other code issued to Customer (together and individually "Customer`s Identification" or "Customer Identification").

3.2 It is the Customer`s responsibility to keep the Customer`s Identification confidential. Customer has the sole responsibility for its Customer Identification. Customer shall immediately inform ITHSC in case of loss of password or in case of any abuse or attempted abuse of Customer password or other Customer Identification. Customer agrees that Customer is entirely responsible for use of Customer`s Identification and that it is Customer`s responsibility to have in place security measures and procedures to ensure use of its Customer Identification only by authorised personnel for authorised purposes.

3.3 Customer agrees that ITHSC is entitled to rely absolutely on any orders placed on ITHSC which have utilised Customer`s Identification and to deliver as directed by such orders and to invoice and be paid in respect of such orders.

3.4 Customer agrees that any order placed on ITHSC including by Electronic Means mentioning or utilising Customer`s Identification is a valid and binding purchase order.

3.5 Customer acknowledges that ITHSC cannot guarantee the security of the Internet and the possibility of interception or corruption of data transmitted from Customer to ITHSC using correct Customer Identification, and that ITHSC is nonetheless entitled to rely on data transmitted in the form it is received at ITHSC.

4. INFORMATION

4.1 All Product pricing, description, availability and related information ("Information") provided by ITHSC, in any form, is the property of ITHSC or its suppliers. ITHSC hereby grants Customer a limited, non-exclusive, non-transferable license to use the Information for its internal use only for the purpose of Customer`s purchases and sales of Products sold by ITHSC to it. ITHSC shall be entitled to stop the provision of Information at any time without notice. Customer agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilise the Information for any purpose except as permitted herein. ITHSC makes no warranty, either express or implied on the Information or its accuracy. All Information is provided to Customer "as is." If ITHSC provides Information to Customer by Electronic Means, Customer agrees to update such Information regularly to ensure its accuracy. Customer agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilise the Information for any purpose except as permitted herein. Specifically but without limitation Customer is not entitled to utilise Information for any purpose other than in the normal course of business of a reseller and is not entitled to use, reproduce or display the Information in any way, which in ITHSC`s opinion; (1) would enable it to be identified as information obtained from ITHSC (2) would enable comparison of the Information with other suppliers` information relating to products or (3) could be damaging to ITHSC`s business interests.

4.2 ITHSC agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any Customer sensitive information or utilise such information for any purpose if Customer has notified ITHSC in writing that it is confidential.

5. ORDERS AND SPECIFICATIONS

5.1 The Customer shall be responsible to ITHSC for ensuring the accuracy of the terms of any purchase order.

5.2 ITHSC reserves the right to make any changes to the Contract due to changes in the specification of the Products which are required to conform with any applicable safety or other statutory requirements. These changes will be duly notified to the Customer. The Customer cannot cancel or reschedule the Contract provided the changes do not alter the material terms of the Contract. For other types of changes, the possibility of cancellation will be subject to ITHSC`s discretion and conditions.

5.3 ITHSC is under no obligation to accept the withdrawal of an order or the cancellation of a Contract which has been accepted by ITHSC. If ITHSC agrees to accept the Customer`s withdrawal of any order or the cancellation of a Contract such agreement will only be effected by means of letter, fax or email signed or sent by an Authorised Representative of ITHSC.

5.4 Notwithstanding any other terms of these Conditions it is agreed that the provision or display of Product pricing and other Information (as defined in Clause 4.1) by ITHSC to Customer does not amount to an offer by ITHSC to sell such Product at that price or on any other terms. Supply of such Information is only an invitation to treat. An order by the Customer for Product or Services shall be the offer.

5.5 In the case of orders placed by Electronic Means only, notwithstanding any acceptance by ITHSC of any offer for any Product, if there has been a material or obvious pricing error by ITHSC, ITHSC shall be entitled within 30 days of its acceptance of such offer to either invoice the Customer for the Customer`s true list price (not exceeding the prevailing market price at wholesale level) of the Product at the date of order or, if the Customer shall prefer, collect the Product at ITHSC`s expense and credit the Customer for any charges (e.g. price and freight) invoiced by ITHSC.

6. PRICE OF THE PRODUCTS

6.1 Subject to the provisions of Clause 5.5 and Clause 6.2:-

6.1.1 Prices for Products in ITHSC`s stock ready to be shipped will be established at the time the order is accepted by ITHSC;

6.1.2 If the Customer places an order for Products not in stock at the time of order (a "Backorder") or the Customer places an order for scheduled delivery, such orders shall be irrevocable and the price for such Products shall be the price established at the time the Backorder or scheduled delivery is accepted by ITHSC.

6.2 Notwithstanding any of the foregoing ITHSC reserves the right to increase its prices after acceptance of an order due to an increase in its supplier`s price to ITHSC or an increase in direct costs to which ITHSC becomes subject (including without limit costs resulting from currency fluctuation) but ITHSC shall only increase its price by such level as is necessary to reflect such increases.

6.3 All prices exclude the cost of delivery from ITHSC`s warehouse to the Customer`s delivery point, configuration, fulfillment and other services provided by ITHSC.

6.4 All prices and charges are exclusive of any applicable Value Added Tax, which the Customer will be additionally liable to pay to ITHSC. Unless otherwise stated prices exclude any copyright levies, waste and environmental fees, and similar charges that ITHSC by law or statute may or shall charge or collect upon resale.

6.5 If Customer is offered special pricing for certain orders and such pricing is made available to ITHSC from its suppliers ("Special Bids"), the Customer shall adhere to the terms and conditions of such Special Bids and agrees to indemnify ITHSC for any claims made against ITHSC by the suppliers for Customer`s non-compliance with the supplier`s terms and conditions. Customer agrees to pay any service fees charged for ITHSC`s pass-through of Special Bids and other supplier driven benefits the Customer may receive, including any marketing funding, price protection and individual rebates, and agrees that pass-through and payment of such benefits will be subject to ITHSC having received the benefits from its supplier.

7. TERMS OF PAYMENT

7.1 Unless ITHSC shall have previously agreed in writing with the Customer that the Products shall be supplied on credit, payment for the Products shall be made in full by the Customer with the Customer`s order or on delivery or collection of the Products as determined by ITHSC. If payment is made by credit or debit card the Customer agrees to pay all fees and service charges incurred by ITHSC for the handling of such transaction including fees charged by the card company to ITHSC.

7.2 Where ITHSC has agreed to supply the Products on credit Customer shall pay the price of the Products within 30 days of the date of ITHSC`s invoice notwithstanding that title to the Products has not passed to the Customer. Customer shall not deduct or set off any other amount against the invoice as compensation for any payment made prior to the due date. Invoices will be dated the day of dispatch of the Products. ITHSC shall be entitled at its absolute discretion to alter payment terms (other than on concluded Contracts) and withdraw or alter any credit limit granted at any time with notice. If Customer exceeds its credit limit or fails to qualify for continued credit terms, ITHSC may, at its sole discretion, delay subsequent shipments or require prepayment until ITHSC determines that Customer is once again qualified to receive credit terms. Customer shall not set off or withhold any amount due to ITHSC against its receivables without ITHSC`s prior written approval, and shall in the event of a bona fide dispute, pay any undisputed part of the invoice.

7.3 The time of payment shall be of the essence. If the Customer fails to make a payment on the due date then without prejudice to any other right or remedy available to it ITHSC shall be entitled to:-

7.3.1 cancel the Contract or suspend any further deliveries or suspend any Services to the Customer; ITHSC may at its discretion grant Customer a reasonable cure period before canceling the Contract due to non-payment;

7.3.2 appropriate any payment made by the Customer to such of the Products as ITHSC may think fit (notwithstanding any purported appropriation by the Customer);

7.3.3 charge the Customer interest (both before and after judgment) on the amount unpaid at the rate of 5% per annum above Barclays Bank plc base rate from time to time until payment in full is made such interest being calculated on a daily basis.

7.4 On request and subject to agreement Customer shall provide ITHSC`s Credit Department with copies of its annual financial statements and its quarterly statements within sixty (60) days of the close of the fiscal period to which they relate. Customer shall inform ITHSC promptly if there is a change of ownership or control of Customer or its direct or indirect parent company (excluding changes of ownership of the shares of a publicly quoted company which do not result in a change in control of the company`s board of directors or other governing board), a management buy-out, or all or a substantial part of the Customer`s assets are sold or otherwise transferred to any non-affiliated company or member of the Customer`s group of companies.

7.5 In the event Customer intends to sell, assign, factor or otherwise transfer any book debt owed to Customer or to enter into any form of invoice discounting arrangement Customer agrees to inform ITHSC in writing prior to entering into any such arrangements.

7.6 If ITHSC issues a credit note and the Customer does not utilise the credit note within a period of 12 months from the date of its issue ITHSC shall have the right to cancel the credit note and the Customer shall not be entitled to a replacement or any payment in respect of the same.

7.7 Any credit balance shown on a Customer`s statement of account issued by ITHSC which remains on the statement for a period of 12 months will be forfeited by the Customer who shall no longer have any rights to the same.

8. DELIVERY

8.1 Delivery of the Products shall be made by ITHSC to such place as shall have been agreed between ITHSC and the Customer. Unless the Customer shall have notified ITHSC in writing within 5 working days of the date of ITHSC`s invoice that the Products have not been delivered then delivery shall be deemed to have taken place in accordance with the Contract and the Customer shall not be entitled to raise any claim of short or mis-shipment.

8.2 ITHSC shall be entitled to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the Products on behalf of the Customer or the Customer`s customer (if ITHSC has agreed to deliver direct) does in fact have the authority.

8.3 Any dates quoted for the delivery of Products are approximate only and ITHSC shall not be liable for any delay in delivery of the Products howsoever caused.

8.4 Partial delivery is allowed unless otherwise mutually agreed by both parties. Failure by ITHSC to deliver the rest of the Products shall not entitle the Customer to treat the order as a whole as repudiated.

8.5 For the purpose of these Conditions where ITHSC has agreed to deliver Products direct to the Customer`s customer any such delivery shall be deemed to be delivery to the Customer and any refusal by the Customer`s customer to accept delivery shall be deemed to be a refusal by the Customer.

8.6 The Customer shall bear all costs associated with the unjustified refusal of delivery of Products. If the refusal is made on the grounds that the order was wrongly placed (i.e. wrong product, wrong pricing, etc.) and the refusal is accepted by ITHSC, ITHSC reserves its right to charge accordingly additional fees for return transportation and administrative expenses related thereto, and original carriage costs will not be reimbursed.

9. RISK AND TITLE

9.1 Risk of damage to or loss of Products shall pass to the Customer at the time of delivery or if the Customer unjustifiably fails to take delivery of Products the time when ITHSC has tendered delivery of the Products.

9.2 Notwithstanding delivery and the passing of risk of the Products or any other provisions of these Conditions, title to the Products shall not pass to the Customer until ITHSC has received in cleared funds payment in full of:-

 

9.2.1 the Products; and

9.2.2 all other sums which are or which become due to ITHSC from the Customer on any account.

9.3 Until such time as title to the Products passes to the Customer the Customer shall:-

 

9.3.1 hold the Products as ITHSC`s fiduciary agent and bailee; and

9.3.2 keep the Products separate to those of the Customer and third parties; and

9.3.3 keep the Products properly stored protected and insured, and identified as ITHSC`s property; and

9.3.4 accept that Products may be labeled as being ITHSC`s property until ITHSC is paid.

9.4 Until such time as the title in the Products passes to the Customer (and provided the Products are still in existence and have not been resold) ITHSC shall be entitled at any time to require the Customer to deliver up the Products to ITHSC and if the Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.

9.5 The Customer`s right to possession of the Products shall terminate immediately if:-

 

9.5.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or

9.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between ITHSC and the Customer or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or

9.5.3 the Customer encumbers or in any way charges any of the Products.

9.6 Customer is entitled to resell the Products in the ordinary course of business. Customer is not able or entitled to offer the Products as collateral or otherwise grant a charge in respect of the Products until title has passed to the Customer in accordance with these Conditions. Customer shall inform its customers that title to the Products is retained by ITHSC until Customer has paid ITHSC, and shall ensure that its customer has agreed with the Customer that any unpaid Products shall be returned to ITHSC in the event of Customer`s failure to pay ITHSC`s invoices when they fall due. The Customer shall upon ITHSC`s request provide ITHSC with all details and information necessary for ITHSC to collect the Products.

10. WARRANTIES AND LIABILITY

10.1 ITHSC does not manufacture the Products (or where the Products comprise computer software does not publish or license the software) and subject to the conditions set out below in this Clause 10 ITHSC only sells the Products with the benefit of the manufacturer`s or publisher`s or licensor`s (“publisher`s”) warranty (as the case may be).

10.2

10.2.1 ITHSC will accept liability for defective Products only to the extent that ITHSC is entitled to make a claim under the manufacturer`s or publisher`s, Dead on Arrival, warranty or other defective goods terms and actually obtains from the manufacturer or publisher a refund credit repair or replacement in respect of the defective Products. Processing of these defective Products shall be made according to the manufacturer`s procedure and the instructions set out in Clause 10.4 below. ITHSC cannot and shall have no obligation to accept a return of and/or grant a credit for Product not compliant with the manufacturer`s procedures.

10.2.2 ITHSC shall be under no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow ITHSC`s or the manufacturer`s or publisher`s instructions (whether oral or in writing) misuse or alteration or repair of the Products without ITHSC`s approval

10.2.3 ITHSC shall be under no liability under the above warranty if the total price of the Products has not been paid.

10.3 All warranties, conditions or other terms implied by common law or statute, or otherwise in connection with the sale or supply of goods or goods or services (save, in the case of goods, as to title) are excluded to the fullest extent permitted by law.

10.4 Any claim by the Customer which is based on a defect in the quality or condition of the Products shall be notified to ITHSC`s Customer Services Department. Upon notification of any such claim by the Customer ITHSC shall either notify the Customer whether the policy of the manufacturer of the Products is to deal with the Customer direct (in which case the Customer shall deal with the manufacturer direct provided ITHSC gives sufficient details to enable the Customer so to do) or shall provide the Customer with an RMA number (in which case the Customer shall return the Products to ITHSC in their original UNMARKED packaging together with details of the RMA number and the Customer`s name and address). If ITHSC issues an RMA number to the Customer ITHSC shall not send any replacement Products to the Customer until after the original Product has been returned to ITHSC. This Clause 10.4 shall only apply to Products the Customer is entitled to return to ITHSC as provided in these Conditions.

10.5 ITHSC shall not be liable to the Customer for any economic or financial loss or damage (including without limit any loss of profits, loss of revenue, liabilities incurred by the Customer to third parties relating to Products delivered or Services rendered by ITHSC, or additional expenses incurred or the cost of time spent) or any consequential, indirect, or special loss or damage costs expenses or other claims for consequential compensation whatsoever (including without limit loss of or damage to data or loss of goodwill) incurred or suffered by the Customer and in every case howsoever caused or arising (and whether caused by the negligence of ITHSC its employees or agents or otherwise).

10.6 ITHSC`s liability for direct loss or damage arising from damage to tangible property for which ITHSC is liable shall be limited to the VAT exclusive price of the relevant Product or Service in connection with which any claim for damage or loss is made.

10.7 Nothing in these Conditions shall in any way exclude or limit any liability ITHSC may have for death or personal injury caused by its negligence.

10.8 ITHSC shall not be liable to the Customer or be deemed to be in breach of any Contract by reason of any delay in performing or any failure to perform any of ITH